IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60329
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAIBORNE WILLIAMS, also known as “C-Wayne”,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:95-CR-122-1-S
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May 23, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Claiborne Williams (Williams) has appealed his convictions
and sentence for having conspired with his wife, Katrina Brown
Williams (Brown) and others, to launder the proceeds of crack
cocaine distribution, and for having possessed crack cocaine with
intent to distribute it. We AFFIRM.
Williams pleaded guilty pursuant to a written agreement
whereunder other counts of the indictment against him were
dismissed. In the agreement, he acknowledged that the substance
which he had possessed contained “cocaine base (crack cocaine).”
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Williams now contends that the district court reversibly
erred by applying the sentencing guidelines for crack cocaine to
determine his sentence. He argues that at most, the Government’s
evidence established that he possessed “cocaine base,” not “crack
cocaine.” Williams’s contention is reviewable only for plain
error, because he raises it for the first time on appeal. See
United States v. Brooks, 166 F.3d 723, 725 (5th Cir. 1999);
United States v. Brewster, 137 F.3d 853, 856 (5th Cir. 1998).
In Brewster, this court held that the district court did not
plainly err by sentencing the defendant under the cocaine base
(crack) guidelines, because “[t]he record shows that Brewster was
aware that he was charged with, was pleading guilty to, and was
sentenced for possession with intent to distribute cocaine base
('crack’),” and that he “fully understood that the enhanced crack
cocaine guideline applied to his case.” 137 F.3d at 857; accord
Brooks, 166 F.3d at 725. Since the same is true of Williams’s
case, the district court did not commit plain error by sentencing
him under the guidelines applicable to crack cocaine.
Williams contends that the evidence was insufficient to
establish by a preponderance that he obstructed justice relative
to the offenses of which he was convicted, so that the district
court erred by increasing his offense level by two levels on
authority of U.S.S.G. § 3C1.1.
At a hearing on whether Williams’s pretrial release should
be revoked, the Government’s principal witness testified that he
had been unable to appear at a previous hearing because he had
been kidnapped and detained by Williams’s father-in law, Brown’s
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father. The witness testified that he was ultimately released at
the direction of Williams. The witness’s testimony and other
reliable evidence indicated that he was kidnapped in order to
prevent him from testifying against Williams. Accordingly, the
district court did not clearly err by enhancing Williams’s
sentence for obstruction of justice. See United States v. West,
58 F.3d at 133, 138 (5th Cir. 1995); United States v. Pofahl, 990
F.2d 1456, 1481 (5th Cir. 1993) (defendant wrote a letter asking
her husband not to provide evidence against her); United States
v. Mejia-Orosco, 867 F.2d 216, 218 (5th Cir. 1989).
Williams asserts that the Government violated the plea
agreement by failing to advise the trial court of the nature and
extent of his cooperation. He complains that the prosecutor
failed to get a report from a DEA agent who recently had
interviewed Williams, and to tell the court what transpired.
Williams also asserts that the Government did not give him an
adequate opportunity to cooperate.
The prosecutor told the court that Williams had helped the
Government by urging his wife to cooperate, which she did. The
prosecutor also told the court that Williams’s speaking with the
DEA agent was an encouraging sign that he had begun to cooperate.
The defense did not assert in the district court that the
Government failed to comply fully with the plea agreement, so
Williams is not entitled to relief on that ground unless there
was plain error. See Brooks, 166 F.3d at 725.
Williams argues that he was prejudiced by the “failure to
comply with the plea agreement,” but he does not assert that he
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actually told the DEA agent anything that would have constituted
“cooperation,” or even what cooperation he may have provided if
he had been afforded more opportunities. He is not entitled to
relief on this point because he has not shown that there “was
clear and obvious [error] that affected [his] substantial
rights.” Brooks, 166 F.3d at 725.
Williams contends that the Government breached the plea
agreement by failing to evaluate his cooperation in order to
determine whether to exercise its discretion to move for a
substantial-assistance departure. Williams asserts that the
Government induced his guilty plea by an implicit agreement to at
least interview him and to evaluate his cooperation to determine
whether to exercise its discretion to file for a downward
departure under U.S.S.G. 5K1.1. Williams makes this contention
for the first time on appeal also, so he is not entitled to
relief unless there was plain error. See Brooks, 166 F.3d at
725; United States v. Palomo, 998 F.3d 253, 256 (5th Cir. 1993).
The Government was not obligated to interview Williams
further, because the plea agreement provides that the decision
whether to move for a downward departure was within the
Government’s sole discretion. See United States v. Price, 95
F.3d 364, 369 (5th Cir. 1996). Nor was the Government obligated
to seek additional information from Williams. See United States
v. Garcia-Bonilla, 11 F.3d 45, 47 (5th Cir. 1993).
Williams attempts to distinguish Price and Garcia-Bonilla on
their facts. However, the facts in Price and Garcia-Bonilla
actually favor those appellants more than the facts favor
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Williams. The reason is that the former two appellants preserved
their right of appeal by raising the point in the district court.
See Price, 95 F.3d at 367, and Garcia-Bonilla, 11 F.3d at 46.
Because Williams failed to do so, he is relegated to the plain-
error remedy, which he also fails to argue for.
Williams contends that his conviction of conspiracy to
launder money must be set aside because Count One fails to charge
that offense. Specifically, he asserts that it fails to state an
essential element, that there was a nexus between the alleged
money-laundering conspiracy and interstate commerce.
The failure of an indictment to allege an essential element
of the offense charged is a jurisdictional defect which is not
waived by the failure, as in Williams’s case, to raise it in the
district court. United States v. Williams, 203 F.2d 572, 573-74
(5th Cir. 1953). However, if the point is raised for the first
time on appeal, an indictment will be held “sufficient, unless it
is so defective that by any reasonable construction, it fails to
charge an offense for which the defendant is convicted.” United
States v. Alford, 999 F.2d 818, 823 (5th Cir. 1993) (citation and
quotation marks omitted).
In United States v. Green, 964 F.2d 365, 374-75 (5th Cir
1992), this court held that a money-laundering indictment which
did not specifically mention interstate commerce but alleged the
involvement of banks was sufficient, because an effect on
interstate commerce is incidental to the banking industry. 964
F.2d at 374-75. The Eighth Circuit has held similarly relative
to an indictment which alleged the construction of a shopping
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mall. United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir.
1991) (“an effect upon interstate commerce is an inevitable
incident of the construction of a shopping mall”), cited in
Green, 964 F.2d at 374.
Williams’s indictment refers to the relevant subsections of
the statute, § 1956(a)(1) and (h), and states the time and place
of each of the alleged overt acts. The overt acts describe the
laundering of drugs proceeds through Brown’s purchase of cars and
expenditures for bail bonds, automobile repairs, rental cars, and
repairs to rental cars, as Williams’s nominee. According to the
overt-act allegations, the car purchases not only involved cash
expenditures, but also financing, obtaining insurance, and the
registration and titling of vehicles in Brown’s name.
This court has held that the purchasing of two automobiles
to launder cocaine-trafficking proceeds and for use in the drug-
trafficking conspiracy established the interstate-commerce
element of a money-laundering charge. United States v.
Westbrook, 119 F.3d 1176, 1191-92 (5th Cir. 1997). The court
observed that United States v. Gallo, 927 F.2d 815 (5th Cir.
1991), held that “Congress has generally made clear in 21 U.S.C.
§ 801 that drug trafficking affects interstate commerce.” 119
F.3d at 1192. The Westbrook court stated further that there was
much evidence at Westbrook’s trial “that all cocaine distributed
in the United States is manufactured outside the country.” Id.
In the instant case, the overt-act allegations of the
indictment, described ante, particularly the purchase of the
vehicles in order to launder cocaine-trafficking proceeds, were
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sufficient to reasonably constitute allegations of an effect on
interstate commerce. See Westbrook, 119 F.3d at 1191-92; Gallo,
927 F.2d at 822-23. Therefore, Count One sufficiently alleged
that Williams had participated in a conspiracy to launder money
in violation of § 1956(a)(1) and (h). See Green, 964 F.2d at
374-75.
Williams contends that the guidelines which authorized the
enhancement of his sentence for possession of 241 grams of crack,
for obstructing justice, and for his role in the offense, without
those facts being charged in the indictment or found beyond a
reasonable doubt, are unconstitutional. He relies on Apprendi v.
New Jersey, 530 U.S. 466 (2000). The lack of merit of this
contention is shown by United States v. Salazar-Flores, 238 F.3d
672 (5th Cir. 2001).
Williams argues that he is entitled to relief on the ground
that the Salazar-Flores decision conflicts with the opinions of
five of the Justices who decided Apprendi. This argument lacks
merit because “one panel of this court cannot disregard the
precedent set by a prior panel even if it disagrees with the
prior panel decision. Absent an overriding Supreme Court
decision or a change in the statutory law, only the court sitting
en banc can do this.” Girard v. Drexel Burnham Lambert, Inc.,
805 F.2d 607, 610 (5th Cir. 1986).
The judgment of the district court is due to be, and it is
hereby AFFIRMED.
United States v. Williams
Combined Opinion